Judge Halts NSA Snooping

The Bush administration's warrantless eavesdropping on Amercians' telephone and internet communications is unconstitutional and must stop immediately, a federal judge ruled Thursday.

The ruling is the first court order barring the National Security Agency's ambitious domestic surveillance activities, which have spurred a string of lawsuits against the government and telecommunications companies around the country. It also marks a serious blow to the administration's sweeping interpretation of executive authority under the Constitution, a stance that's riled politicians and legal scholars alike.

Detroit U.S. District Court judge Anna Diggs Taylor, presiding over an ACLU challenge to the so-called "Terrorist Surveillance Program", rejected(.pdf) the government's assertion that the state secrets privilege prevents any review of the NSA surveillance.

In the past, the privilege has allowed the government to put an immediate stop to judicial proceedings that it says might reveal top national security secrets.

But in this case, "the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions" regarding the NSA's warrantless wiretapping of Americans.

The wiretapping "violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the Foreign Intelligence Surveillance Act and Title III (of the Constitution)," according to Taylor's injunction.

"Todays ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," said ACLU Director Anthony D. Romero in a written statement. "Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy."

The administration publicly confirmed a December report in The New York Times that revealed the National Security Agency is wiretapping Americans' overseas phone calls to or from phone numbers or people the government suspects might be connected to terrorism. President Bush later dubbed the operation the "Terrorist Surveillance Program."

The NSA is not seeking or obtaining court authorization for the wiretaps, shunting aside the requirements in the 1978 Foreign Intelligence Surveillance Act, which Congress enacted in the wake of Cold War-era domestic surveillance abuses.

Key to Taylor's ruling was the ACLU's argument that its plaintiffs, including attorneys and journalists, like NSA chronicler James Bamford, have suffered real and concrete harm as a result of the program's very existence.

"Plaintiffs' declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients."

Taylor largely followed the logic of a June 20 ruling by San Francisco District Court Judge Vaughn Walker, who allowed a lawsuit to continue against AT&T for its alleged participation in the NSA surveillance despite the government's national security arguments. That decision is being appealed both by the government and AT&T to the U.S. 9th Circuit Court of Appeals.

(Disclosure: Wired News has filed a motion to intervene in the San Francisco case, asking the court to make public evidence, filed under seal, of AT&T's alleged wiretapping activities.)

It's unclear what the immediate effect of Taylor's decision will be, but the administration is likely to ask for a stay of the injunction pending an appeal to the U.S. 6th Circuit Court of Appeals.

Taylor's permanent injunction also covers "any other persons or entities in active concert or participation with the program," which likely includes several of the nation's largest telecommunications companies, including AT&T. AT&T spokesman Walt Sharp declined to say if the telecom giant would obey the order. "We don't comment on matters of national security," he said.